Insight&CommentaryonOccupationalSafety&HealthIssues

OSHA in 2010: What to Expect!

In mid-December 2009, Professor David Michaels was sworn in as the new Assistant Secretary of Labor for OSHA. Shortly after being sworn in as Assistant Secretary, Professor Michaels gave an interesting speech at the National Institute for Occupational Safety and Health (NIOSH) Going Green Workshop. The speech was entitled “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability,” and provides a good glimpse as to where he would like to take OSHA in 2010 and beyond.

Professor Michaels’ speech touched on many important issues with respect to occupational safety and health. In particular, he emphasized the need for workers to be heavily involved in workplace safety, to know the hazards they may face, and to work with their employers to identify and correct hazards in the workplace. “To get us up to date and move into a safer, healthier future, it’s . . . clear that workers must have a stronger voice in workplace safety than they have now.” Professor Michaels has always been a strong proponent of safety and health management systems, whereby employers and employees deal proactively with workplace hazards through management leadership, employee participation, hazard identification and control, and system evaluation. His speech certainly suggests that he will continue to push this as head of OSHA.

Professor Michaels also mentioned OSHA’s “substantial” budget increase, which will “significantly increase the number of inspectors” OSHA puts in the field and the need to update many of OSHA’s outdated standards. Translation: the Agency must do everything it can to increase enforcement and engage in smart rulemaking to “to create good standards.”

So what does all this boil down to as a practical matter? In 2010, employers should expect OSHA to continue to push forward aggressively on enforcement and regulatory initiatives. Some specific initiatives to watch out for include a:

Final Cranes and Derricks in Construction rule. OSHA staff have been working diligently to finalize a rule addressing hazards associated with crane operations. If the rule is finalized as proposed, it would be one of the largest overhauls of the nation’s safety regulations in the Agency’s history. OSHA’s existing rules for cranes in construction take up only a few pages of the Code of Federal Regulations with several cross-references to outdated national consensus standards. The proposed rule and preamble, in contrast, fill out 250 densely packed pages of the Federal Register. The proposal contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.

Crystalline Silica Proposed Rule. Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust. OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and lung cancer. It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade and the Agency seems poised to take that next step in 2010. Expect a proposed rule on silica to be released sometime this year, as OSHA pushes forward on this longstanding initiative.

New Approach on Ergonomics. For the last year, various administration officials have stressed the importance of OSHA dealing with WMSDs and ergonomics. WMSDs still comprise a significant percentage of workplace injuries every year. WMSDs occur in every industry and in every job throughout the country.

Almost a decade ago, the Clinton Administration finalized an ergonomics standard that would have required all general industry employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management. It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods of time they are out of work due to a work-related injury.

Congress and President Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA). As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard. No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

OSHA cannot keep avoiding the issue of ergonomics and likely will start to take on the issue in 2010 of what it can and cannot do under the CRA. It will also likely increase ergonomics enforcement under the General Duty Clause.

No matter what happens in 2010, we will keep you up-to-date in this space on the latest OSHA developments.

Jackson Lewis P.C.

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